Fiona Scott Morton

Fiona Scott Morton
Scott Morton in 2019
Academic career
Institution	Yale University
Alma mater	Yale University (B.A.) Massachusetts Institute of Technology (Ph.D)

Fiona M. Scott Morton is an American economist who serves as the Theodore Nierenberg Professor at Yale School of Management. Her research in industrial organization has covered industries including magazines, shipping, pharmaceuticals, and internet retail. She served as associate dean of the Yale School of Management from 2007 to 2010, and she has won the school's teaching award twice.

From 2011 to 2012, she served as the Deputy Assistant Attorney General for Economics at the United States Department of Justice Antitrust Division. In her academic work, she has advocated for the U.S. government's role in ensuring healthy competition in healthcare markets and the tech industry. Scott Morton is a consultant to the competition practice at the economics consulting firm CRA International in parallel with work as professor. Morton Scott is the director of the Thurman Arnold Project at Yale.

Early life and education

Scott Morton grew up in Lexington, Massachusetts, where she attended the public school system. She graduated from Yale in 1989 with a Bachelor of Arts magna cum laude in economics (spending a year abroad at Clare College, Cambridge) and then went on to get a Ph.D. in economics at MIT in 1994.

Career

Early career

Scott Morton’s first academic job was at the Stanford Graduate School of Business, where she worked for three years before moving the Chicago Graduate School of Business (now known as Booth). In 1999 she became an Associate Professor at the Yale School of Management, where she has taught ever since. She was promoted to Full Professor in 2003, has served as Associate Dean, and has won the Yale School of Management’s Alumni Association Elective Teaching Award three times.

Department of Justice

In May 2011 Scott Morton took public service leave from Yale to be Deputy Assistant Attorney General for Economic Analysis for the Antitrust Division of the United States Department of Justice. In this position she oversaw a team of almost fifty economists to investigate mergers, analyze monopolization cases, and carry out competition policy work.

During that time the Antitrust Division blocked the merger between H&R Block and TaxAct as well as AT&T and T-Mobile. The AnheiserBusch-GrupoModelo merger, which resulted in the divestiture of the US operations of GrupoModelo, and the Apple-eBooks case started while Scott Morton was chief economist.

Disagreement with Chicago School

Scott Morton’s views depart from assumptions posited by the “Chicago School” of antitrust. According to Scott Morton, "The Chicago School colonized the field in the 1980s. Few in the judiciary or enforcement communities wanted to vigorously enforce the antitrust laws. The Chicago folks made that worse by using [decades-old] economics, which conveniently left out many of the tools you need to get the job done properly.”

The Chicago School places great weight on the ability of entrants to enter and overthrow an established incumbent regardless of entry barriers, scale economies, network effects and the like, resulting in markets operating at peak efficiency without any need for enforcement. Similarly, little enforcement is needed in mergers either because they are assumed to generate great efficiencies. By contrast, Scott Morton stresses that even very simple models of competition illustrate the incentive for monopolists become established and remain entrenched in the absence of enforcement; and for capitalism to work and benefit regular consumers there must be “rules of the road.”

According to her sometime co-author Steve Salop, Scott Morton is a leading figure in the so-called "post-Chicago" group that has forged "a coherent body of work that can be used by policymakers and advocates.”

Scott Morton has expressed her frustration with the “cramped” thinking on competition topics that has prevailed during the 1980-2010 period. Entering a field in which government representatives reflexively touted the importance of moderation, Scott Morton rapidly became known as an advocate for bold action in the pursuit of anticompetitive measures. According to Scott Morton, “The economic tool kit lets you say, 'Look here, I have identified a new competition problem that is harming consumers.' A lawyer’s response is often, 'That’s a new product, market, or problem. It doesn’t fit existing precedent and we don’t know how to use our legal tools to challenge it.' I realized that very few people in the policy world thought that fixing that second step was their job. Nor did academics."

Prominent research

Scott Morton's influential 2014 paper "Strategic Patent Acquisitions," co-authored with Carl Shapiro, explains that when Standard Setting Organizations (technical bodies that gather to set standards like 4G) allow the exercise of market power by the patents needed in the standard (SEPs) they are effectively an anticompetitive cartel that could be disciplined by antitrust enforcement.

In 2017, in "A Unifying Analytical Framework for Loyalty Rebates," which appeared in Antitrust Law Journal, Scott Morton and Zachary Abrahamson explained that loyalty discounts and rebates may potentially run afoul of antitrust statutes because they explicitly exclude a challenger who is growing and stealing share from the incumbent. The authors developed a metric called “effective entrant burden” to measure the degree to which a firm leverages its non-contestable assets into anti-competitive exclusion.

In 2018, in the Yale Law Journal, Scott Morton and Jonathan B. Baker authored a paper titled “The Antitrust Case Against Platform MFNs” in which they took up "platform MFN" status as a topic of potential antitrust enforcement attention. Platform MFNs, sometimes called pricing parity provisions, are often seen in hotel-online travel agent relationships, healthcare provider-insurer relationship, and ecommerce platforms. The platform requires that the business users in its network not offer their products or services at a lower prices (or better terms) on their own sites or on other platforms. The authors review the long economics literature showing that these arrangements cause higher prices and block entry, and argue that the Sherman Act might well be used to challenge them.

In the same issue of the Yale Law Journal, Scott Morton and Herbert Hovenkamp contributed a paper, "Horizontal Shareholding and Antitrust Policy," in which they argued that large institutional investors who hold stakes in direct competitors pose a competition problem than could be addressed by antitrust enforcement. Such “horizontal shareholding” or “common ownership” may lessen competition because the same owner of, for example, Coke and Pepsi would benefit from higher prices in the market.

In 2019 Scott Morton and her co-authors Shapiro and Giulio Federico wrote an article titled “Antitrust and Innovation: Welcoming and Protecting Disruption” in which they discussed the importance of innovation competition, reiterating its importance in generating consumer welfare. Any merger between competitors (whose customers care about the innovativeness of the product) inevitably causes the new entity to internalize business-stealing effects from each other. Without an incentive to use a great product to gain share versus a rival, innovation efforts fall.

In the same year Scott Morton and her coauthors Jonathan Baker, Nancy Rose, and Steve Salop authored an article for the journal Antitrust called “Five Principles for Vertical Merger Enforcement Policy.” The five principles were as follows:

(1) The agencies should consider and investigate the full range of potential anticompetitive harms when evaluating vertical mergers;

(2) The agencies should decline to presume that vertical mergers benefit competition on balance in the oligopoly markets that typically prompt agency review, nor set a higher evidentiary standard based on such a presumption;

(3) The agencies should evaluate claimed efficiencies resulting from vertical mergers as carefully and critically as they evaluate claimed efficiencies resulting from horizontal mergers, and require the merging parties to show that the efficiencies are verifiable, merger-specific and sufficient to reverse the potential anticompetitive effects;

(4) The agencies should decline to adopt a safe harbor for vertical mergers, even if rebuttable, except perhaps when both firms compete in unconcentrated markets;

(5) The agencies should consider adopting rebuttable anticompetitive presumptions that a vertical merger harms competition when certain factual predicates are satisfied.

Work on Stigler Committee on Digital Platforms

In 2019, Scott Morton was the Chair on the Subcommittee on Market Structure and Antitrust for the Stigler Committee on Digital Platforms at the University of Chicago. This subcommittee carefully laid out the economic characteristics of digital platforms and traced from those the resulting competition problems. The report goes on to make a forceful argument for the need for increased antitrust enforcement as well as complementary regulation for digital platforms. In the conclusion of that section of the report, the subcommittee wrote:

[A] lack of competition lessens the pressure on any platform to deliver high quality to its customers for fear that they will move to a rival platform. Perhaps most importantly, insufficient competition among and for digital platform position distorts and reduces innovation in a sector that has been—and, under the right conditions, will continue to be—the source of huge benefits for consumers and society. It is unlikely that these problems will self-correct, meaning new and revised rules and incentives will be needed to prevent market power from entrenching a few dominant tech firms as economic and social gatekeepers.

Thurman Arnold Project

In 2019, Scott Morton began her leadership of the Thurman Arnold Project, named after an influential Yale law professor who, in the 1940s, established the modern form of the Antitrust Division and popularized enforcement. In her first year in the role, Scott Morton chose as the thematic focus "Digital Platform Theories of Harm." Students divided into five groups (Amazon, Apple, Facebook, Google Search, and Google Ad Tech), examined the actions of each company and argued how those actions might violate the antitrust laws. In subsequent years, the Thurman Arnold project has focused on Competition Policy in agriculture, labor and finance (2020-21), Digital Platform Regulation (2021-22), and Antitrust Law and Market Realities (2022-23). At the end of each year the students have presented their work to policy makers, often current antitrust enforcers.

Open letter to House Judiciary Committee

On April 30, 2020, Scott Morton and 11 other well-known economists authored an open letter to the House Judiciary Committee outlining the legal developments that limit the success of meritorious antitrust plaintiffs, both in merger challenges and exclusionary conduct. The letter called on Congress to implement strong antitrust reform in the United States.

The letter called for the following measures: "Correct flawed judicial rules that reflect unsound economic theories or unsupported empirical claims; Clarify that the antitrust laws protect against competitive harms from the loss of potential and nascent competition, especially harms to innovation; Incorporate presumptions that better reflect the likelihood that certain practices harm competition; Recognize that under some circumstances conduct that creates a risk of substantial harm should be unlawful even if the harm cannot be shown to be more likely than not; Alter substantive legal standards and the allocation of pleading, production, and proof burdens to reduce barriers to demonstrating meritorious cases."

Antitrust case "roadmaps"

In the spring of 2020, Scott Morton and David Dinielli authored three “roadmap” articles relying on public information and facts released by the Competition and Markets Authority in the UK. These articles explained the economics underlying the conduct of Facebook, Google Search, and Google ad tech, and how that conduct fits into existing antitrust jurisprudence. The articles argue that in each of those three instances, a viable antitrust case could be brought under existing law.

Horizontal merger guideline reform

In the special issue of the Review of Industrial Organization dedicated to examining changes to the guidelines on horizontal mergers introduced by the U.S. Department of Justice and the Federal Trade Commission On August 19, 2010. In the issue, Scott Morton and Steven Salop contributed an article titled “The 2010 HMGs After Ten Years: Where Do We Go From Here?” in which they forcefully advocated for stricter merger enforcement. Scott Morton and Salop warned of problems arising from mergers that generate a Gross Upward Pricing Pressure Index (GUPPI) of greater than 10% and proposed reversing the increase in the Herfindahl-Hirschman Index thresholds made in the 2010 guidelines. Furthermore, the authors expressed the benefits of expanding potential competition analysis in order to assume a tougher stance on mergers between firms that might compete at some point down the road.

Platform annexation

In 2021 Scott Morton and Susan Athey co-authored an important paper that appeared in the Antitrust Law Journal under the title "Platform Annexation." The paper illustrated a series of strategies digital platforms use to disadvantage rival firms and maintain their own position as market leaders; it represented a bold new approach on how digital platforms exercise their power, most fundamentally by raising rivals' costs. In the paper, Athey and Scott Morton wrote:

When a platform competes against other platforms, it is incentivized to keep all sides of its own platform happy by ensuring it serves their needs and by improving quality and price. Some mergers involving platforms will be designed to this end and will therefore be procompetitive. In contrast, when a dominant platform wishes to lessen competition, it is incentivized to control the tools of its constituents to prevent them from multi-homing or sponsoring entry. This conduct is harmful because it alters short run choices users would otherwise make in order to harm them further in the long run.

Digital market regulation

In March 2023, Yale University assembled 60 top economists including Nobel Laureate Jean Tirole, Chief Economist for the DOJ Antitrust Division Susan Athey, Mark Armstrong (University College London), Jacques Cremer (Toulouse School of Economics), and Joshua Gans (University of Toronto) on the occasion of the "Regulating the Digital Economy" conference, held at Yale’s Tobin Center for Economic Policy. Scott Morton, along with her Yale colleagues Dirk Bergemann and Katja Seim, led the conference.

Steven Berry, faculty director of the Tobin Center, said in his opening remarks: “Digital markets present profound challenges for markets and society. A stronger theoretical and empirical basis in economics helps inform a regulatory response that avoids harms.” Keynote speaker Tirole said, "Competition and antitrust law alone are not well suited to address the range of challenges presented by platforms. The tools of regulation must be deployed, but must be done so well. Our collaboration with the Tobin Center mobilizes leading economists to take on essential research and brings it to policymakers, enabling better, more effective policy.”

Undisclosed conflict of interest controversy

Scott Morton advised the US House Judiciary Committee in its 2019 probe of tech giants. She contributed to reports critical of Facebook and Google, while not disclosing that Apple and Amazon were her clients.

In 2020, the American Prospect magazine revealed that Scott Morton did not disclose consulting contracts with Apple and Amazon. The article in the American Prospect was written by David Dayen, the journalist who labelled Scott Morton an antitrust crusader a year earlier. Dayen reported that Scott Morton had herself revealed her apparently long-standing consulting work for Apple and consulting work for Amazon that had at that point lasted a year, in a panel where she spoke in 2020.

In another instance, Scott Morton authored an Op-ed advocating against any initiatives to break up Big Tech, without disclosing her ongoing consulting work for Apple. In her defense, Scott Morton stated “I work for companies that I’m comfortable are not breaking the law.”

At the time of the revelations on the undisclosed conflicts of interest, Scott Morton was the director of the Thurman Arnold Project at the Yale University. In the wake of the revelations about Scott Morton's undisclosed conflicts of interest, two fellows of the Thurman Arnold Project, Sanjukta Paul and Stacey Mitchell, resigned. Stacey Mitchell indicated that she resigned because Scott Morton's paid for advisory work for Apple and Amazon made it difficult for the project to achieve its objective and was at odds with the legacy of Thurman Arnold.

The author and critic of monopoly power Zephyr Teachout called for Scott Morton to resign as the director of the Thurman Arnold Project. Scott Morton did not resign and remains the director of the project.

External links

• Fiona Scott Morton publications indexed by the Scopus bibliographic database. (subscription required)
• Fiona Scott Morton at Yale School of Management
• Op-ed by Fiona Scott Morton titled Why ‘breaking up’ big tech probably won’t work in The Washington Post
• Thurman Arnold Project at Yale